Docket No. 82992.
Argued December 6, 1989 (Calendar No. 9).
Decided September 11, 1990.
E.J. McCormick, Jr., for the plaintiff.
Ready, Sullivan Ready (by Michael L. Heller) for the defendant.
We consider whether the Court of Appeals properly reversed the trial court's decision to terminate alimony under an express provision in the parties' divorce judgment. We conclude that the Court of Appeals applied an erroneous standard in reviewing the decision of the trial court.
After some twenty-eight years of marriage, the parties were divorced by a judgment of the Monroe Circuit Court dated, April 23, 1985, which was taken by settlement of the parties. Pursuant to the divorce judgment, plaintiff Kenneth Beason was to pay alimony of $320 per month to defendant, Mary Beason. The divorce judgment provided, however, "that said alimony payments shall terminate upon the re-marriage of the said Mary L. Beason or when the said Mary L. Beason should reside with an unrelated adult male person." On April 8, 1986, plaintiff filed a motion for the permanent termination of alimony, alleging that defendant was residing with an unrelated male person, John Robinson, in defendant's house at 15475 Dayton Road in Monroe, Michigan.
At a hearing on plaintiff's motion, John Robinson testified that as a long-distance truck driver, he often made trips lasting several days and that he was outside of Monroe County most of the time. According to Robinson, he considered his residence to be a mobile home which he had purchased in January or February of 1986. Before that, he considered his residence to be an apartment which he rented until the purchase of the mobile home. Robinson stated that "on occasion" he used the mobile home as a mailing address, but that he would have important mail such as paychecks or credit card bills sent to a post office box. He testified that he never used the Dayton Road address as a mailing address. Robinson's thirty-two-year-old niece also lived in the mobile home free of rent and, according to Robinson, performed services such as doing laundry and taking care of the mobile home for him. Robinson testified that he did not keep any clothing or personal articles at defendant's home. He did change clothes at the Dayton Road address after work and before going out to dinner with the defendant, but he changed into clothes that he brought with him. Because of the nature of his work, Robinson carried a change of clothing at all times.
Robinson kept his Trans-Am automobile at defendant's house when he was out of town. Robinson stated that when he went to work he sometimes drove his own car and sometimes drove defendant's, a green Thunderbird. According to Robinson, defendant probably drove his car to work more often than she drove her own.
Robinson testified that he did not help defendant with her bills or give her money. He did maintain her lawn and shrubbery, and would sometimes come over to mow the lawn when defendant was not at home. However, he testified that defendant had not given him a key to the Dayton Road address and had not given him permission to be there when she was not at home. On one occasion, Robinson performed a repair inside the house when defendant was not there. Defendant stated that on this occasion she told Robinson where the spare key was so that he could let himself into the house.
Defendant Mary Beason testified that Robinson was a very frequent visitor to her home and had spent the night there. She stated that they spent most of the time together on weekends, and when Robinson was not out of town, she would see him a lot. Every Friday night he took her out to dinner. Robinson would occasionally pay for groceries if he and defendant went to the store to get something to prepare for dinner. The parties stipulated, however, that defendant paid her own bills for gas, water, electricity, cable television, garbage pickup, and telephone. Defendant testified that she never received mail for Robinson at Dayton Road. According to defendant, Robinson did not keep personal effects such as clothing, a razor, or a toothbrush at her house. Defendant testified that Robinson spent as many as two consecutive nights in a row at her house, and when he had long weekends he generally spent them with her.
There was testimony from Sandra Chittum, the adult daughter of the parties, who stated that she had seen no evidence of anyone other than defendant living at the Dayton Road address. She had seen no male clothing in the house and when she used items from the bathroom cabinet had never noticed any toothbrushes other than those of defendant and Mrs. Chittum's own sons.
Plaintiff Kenneth Beason hired a private investigator to make observations of defendant's residence on Dayton Road. The surveillance revealed that on three nights, March 21, 22, and 28, 1986 (a Friday, Saturday, and Friday, respectively), defendant and Robinson were seen entering the Dayton Road address and thereafter all the lights went out.
Defendant and Robinson testified that defendant had accompanied Robinson on an over-the-road trip to Texas, and defendant testified that she "might have" accompanied Robinson on a trip to Indiana. Defendant and Robinson both stated their intention to marry, although defendant had doubts because of Robinson's drinking. Because of these doubts and other unexpected events, defendant and Robinson had postponed their wedding at the time of the hearing on plaintiff's motion to terminate alimony.
The trial court in its opinion found John Robinson to be "less than candid" and concluded that his testimony was not to be believed. The court considered the definition of the term "reside" as used in the divorce judgment and concluded, after reference to dictionary definitions of the term and case law in the area of jurisdiction and venue, that "a common meaning of the word is . . . a place where one remains for a time either permanently or continuously . . . a place where a person makes his home." The trial court found Robinson was in the closest telephone contact with defendant, and that since his vehicle was stored at her home it was logical that upon return from his trips he would go there to secure the vehicle. The court specially noted that Robinson did not leave the vehicle at his mobile home. The court further found that while Robinson did not regularly pay defendant's bills, he did assist her by regularly taking her out to eat. The court noted that although Robinson denied having a key to defendant's house, he had done work there in her absence. The court found this, together with the parties' stated intention to marry, the fact that they had traveled cross-country together, and the fact that Robinson had on numerous occasions stayed overnight at the Dayton Road address, sufficient to show that defendant did reside with an unrelated adult male.
In an opinion by two members of the panel, the Court of Appeals reversed, stating, "We are convinced that we would have reached a different result had we occupied the position of the trial court." Unpublished opinion per curiam of the Court of Appeals, decided January 13, 1988 (Docket No. 98716).
Divorce cases are equitable actions that historically were heard and decided by a chancellor rather than a jury. Although Michigan no longer has separate equity courts, divorce actions continue to be decided by judges rather than by juries.
MCL 552.12; MSA 25.92 provides:
Suits to annul or affirm a marriage, or for a divorce, shall be conducted in the same manner as other suits in courts of equity; and the court shall have the power to award issues, to decree costs, and to enforce its decrees, as in other cases.
In a divorce case, the trial judge performs two distinct functions. First, the court must find facts on the basis of the evidence presented, and then the court must exercise its discretion in fashioning a disposition. In its fact-finding role, the trial court must hear the evidence, choose which witnesses to credit when the evidence conflicts, and, pursuant to MCR 2.517, must place findings of fact on the record or in a written opinion. Upon the basis of the facts, the trial court must then make a disposition of the case. Before the advent of no-fault divorce, the ultimate dispositional ruling was whether a divorce should be granted. Today, the court still must exercise its discretion in fixing the amount of alimony or child support, in dividing property between the parties, or in modifying provisions of the divorce judgment. All of these are dispositional rulings. The trial court's disposition is of course intimately related to its findings of fact, yet it is distinct.
We are not asked here to review a dispositional ruling such as an award of alimony or a modification of such award. Plaintiff Kenneth Beason moved to enforce the terms of the divorce judgment which provided that alimony would terminate if defendant should reside with an unrelated adult male. To rule on plaintiff's motion, the court was required to make a factual determination regarding the living arrangements of the parties. Then, the court was required to construe the word "reside" in the divorce judgment. Finally, the trial court had to apply the definition of the term "reside" as used in the divorce judgment to the facts as it found them, to determine whether defendant's alimony should be terminated.
Construction of the term "reside" may be a question of fact or law. Courts in other jurisdictions, interpreting terms such as "reside," "cohabit" and "live with" as used in divorce judgments which incorporate a stipulation of the parties, generally interpret the judgment in the same manner as a contract. See Gertrude LQ v Stephen PQ, 466 A.2d 1213, 1217 (Del, 1983); Kenyon v Kenyon, 496 So.2d 839, 840 (Fla App, 1986). Thus, if the meaning of the terms used is clear and unambiguous, the decree may be construed as a matter of law. See Brown v Brown, 122 Misc.2d 849, 851-852; 472 N.Y.S.2d 550 (1984), modified 505 N.Y.S.2d 648 (1986); Bell v Bell, 393 Mass. 20, 21, n 1; 468 N.E.2d 859 (1984), cert den 470 U.S. 1027 (1985). However, where the meaning is not clear, the court may consider extrinsic evidence to determine the intent of the parties. Desler v Desler, 56 Or. App. 812, 817; 643 P.2d 655 (1982). The rule in Michigan is essentially similar. A divorce decree is to be construed in light of the findings of fact and conclusions of law. Walker v Walker, 327 Mich. 707, 712; 42 N.W.2d 790 (1950). If it is unambiguous when viewed in this manner, it may be construed as a matter of law. See Tessmer v Tessmer, 261 Mich. 681, 683; 247 N.W. 93 (1933) (read in light of the divorce proceedings, the decree was not ambiguous). However if the terms used are ambiguous, they may be interpreted and clarified by extrinsic evidence. Vigil v Vigil, 118 Mich. App. 194, 200; 324 N.W.2d 571 (1982); Bers v Bers, 161 Mich. App. 457, 464; 411 N.W.2d 732 (1987).
Equity actions historically were treated differently from law cases on appeal. It is frequently said that divorce cases are reviewed de novo. Stratmann v Stratmann, 287 Mich. 94, 95; 282 N.W. 914 (1938); Westgate v Westgate, 291 Mich. 18, 23; 288 N.W. 860 (1939); Wells v Wells, 330 Mich. 448, 452; 47 N.W.2d 687 (1951).
However, in examining Michigan case law to determine the meaning of "de novo" review, we find such a variety of terminology and application that a single clear standard of appellate review does not emerge. Mindful of our distance from the trial bench function, we do see one clear and consistent historical theme: appellate courts have recognized the superior position of the trial court in evaluating the evidence and have hesitated to interfere with factual findings. Very early, this Court recognized the superior position of the trial court in making factual determinations and, consequently, limited review of such determinations:
Scattered through the large record there are many traces of truth and of untruth, and numerous instances of coloring and of exaggeration. There is much to believe and much to disbelieve, and the case is one of those where the decision of the judge exercising primary jurisdiction on matters of fact ought not to be overruled by a court of appeal except upon clear and satisfactory grounds. The appellate tribunal ought to be fully persuaded that it must have reached a different conclusion had it occupied the position of the court appealed from and been favored with all the advantages of that court for judging rightly. [ Nicholas v Nicholas, 50 Mich. 162; 15 N.W. 64 (1883). Emphasis in original.]
Despite some shifting degree of certainty which the appellate courts have felt necessary before reversing a factual determination, this Court and the Court of Appeals have recognized the advantage of the trial judge in making factual determinations. While we acknowledge that it is impossible and perhaps unwise to articulate a bright-line standard of review, we take this occasion to observe that it is as true today as when first stated that "[t]here are many aids possessed by the judge who hears the oral testimony in deciding who of the witnesses are truthful that do not get upon the printed page." Donaldson v Donaldson, 134 Mich. 289, 291; 96 N.W. 448 (1903). This Court has stated that where the circuit judge saw the witnesses and heard the testimony we give great weight to the findings of fact. Bowler v Bowler, 351 Mich. 398; 88 N.W.2d 505 (1958); Hartka v Hartka, 346 Mich. 453; 78 N.W.2d 133 (1956). It is also said that in a chancery case the decree of the trial court will not be reversed unless the record fails to sustain the decree. Whittaker v Whittaker, 343 Mich. 267; 72 N.W.2d 207 (1955); Kuntze v Kuntze, 351 Mich. 144; 88 N.W.2d 608 (1958).
It has been variously stated that the appellate court "generally does not reverse or modify unless convinced that it would have had to reach another result had it occupied the position of the trial court," Paul v Paul, 362 Mich. 43, 47; 106 N.W.2d 384 (1960), or "unless convinced that we would have reached a different conclusion had we occupied the situation of the trial court," Bradley v Bradley, 292 Mich. 370, 372; 290 N.W. 832 (1940), "that we should have reached a different conclusion had we occupied the position of the trial court," Wellman v Wellman, 305 Mich. 365, 372; 9 N.W.2d 579 (1943), or "unless it is clear the reviewing court could have reached a different result had it occupied the position of the trial judge." York v York, 113 Mich. App. 306, 309; 317 N.W.2d 604 (1982).
Appellate review of a trial court's factual determinations was again addressed in the Michigan Court Rules of 1963. GCR 1963, 517.1, modeled after F R Civ P 52(a), directed:
Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.
The Michigan Court Rules continue to recognize that the trial court has a superior opportunity to determine factual questions, and that the trial court's factual determinations are entitled to due regard. MCR 2.613(C).
Because MCR 2.613(C) and its predecessor do not distinguish between law and equity cases, our appellate courts have struggled from time to time with the apparent contradiction between the historic standard of review de novo in divorce cases and the court rule's command that trial court findings of fact must not be set aside unless "clearly erroneous." While the de novo standard continues to be cited in appellate review of divorce cases, we find that the review accorded is not truly de novo. The appellate courts have consistently, and properly, given deference to the factual findings of the trial court. Thus, the "clearly erroneous" standard of review articulated in MCR 2.613(C) merely restates the standard of review formerly applicable in chancery proceedings. See Michigan Court Rules Practice (3d ed), R 2.613, pp 575-576.
F R Civ P 52(a), from which GCR 1963, 517.1 (now MCR 2.613[C]) was patterned, "was intended, in all actions tried upon the facts without a jury, to make applicable the then prevailing equity practice." United States v United States Gypsum Co, 333 U.S. 364, 394-395; 68 S Ct 525; 92 L Ed 746 (1948). The standard then applicable in federal practice was described as follows:
The practice in equity prior to the present Rules of Civil Procedure was that the findings of the trial court, when dependent upon oral testimony where the candor and credibility of the witnesses would best be judged, had great weight with the appellate court. The findings were never conclusive, however. A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. [ Id., p 395.]
This Court has adopted the standard for clear error set forth in Gypsum Co and Tuttle v State Hwy Dep't, 397 Mich. 44, 46; 243 N.W.2d 244 (1976). Despite the repeated citation of a standard of review de novo in divorce cases in our state, we recognize today that the definition of clearly erroneous which we adopted in Tuttle does not contemplate a review de novo.
In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. The authority of an appellate court, when reviewing the findings of a judge as well as those of a jury, is circumscribed by the deference it must give to decisions of the trier of the fact, who is usually in a superior position to appraise and weigh the evidence. [ Zenith Radio Corp v Hazeltine Research, 395 U.S. 100, 123; 89 S Ct 1562; 23 L Ed 2d 129 (1969). See also United States v Yellow Cab Co, 338 U.S. 338, 341-342; 70 S Ct 177; 94 L Ed 150 (1949).]
Pursuant to MCR 2.613(C), then, the Court of Appeals was required to accept the trial court's findings unless those findings were clearly erroneous. In Anderson v Bessemer City, 470 U.S. 564, 573-574; 105 S Ct 1504; 84 L Ed 2d 518 (1985), the United States Supreme Court emphasized the deference which is due a trial court's factual determination in a review for clear error under F R Civ P 52(a):
This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. . . . If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.
Some courts state that a finding which is unsupported by "substantial evidence" is clearly erroneous. See, e.g., Duty v United States, 735 F.2d 1012, 1015 (CA 6, 1984); Canizzo v Farrell Lines, Inc, 579 F.2d 682, 686 (CA 2, 1978), cert den 439 U.S. 929 (1978). Examination of the origins of this interpretation of the language of Rule 52(a) reveals that a review for substantial evidence is a review for bare sufficiency of the trial court's findings. See Baltimore OR Co v Postom, 85 US App DC 207, 208; 177 F.2d 53 (1949); Miller v Comm'r of Internal Revenue, 203 F.2d 350, 353 (CA 6, 1953); Federal Security Ins Co v Smith, 259 F.2d 294, 295 (CA 10, 1958). Thus, a finding which is unsupported by substantial evidence must be reversed. However, the converse is not true; a finding which is supported by substantial evidence is not immune from further review. See Jones v Pitt Co Bd of Ed, 528 F.2d 414, 418 (CA 4, 1975); Williams v Procunier, 735 F.2d 875, 878 (CA 5, 1984), cert den 469 U.S. 1075 (1984). The extent of such further review, of course, is the question before us today.
This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. [ Anderson, supra at 575.]
Unlike the findings of a jury, which are binding in the sense that all inferences in favor of the prevailing party must be accepted, a trial court's factual conclusions in a divorce action are only presumptively correct. However, the burden is on the appellant to persuade the reviewing court that a mistake has been committed, failing which the appellate court may not overturn the trial court's findings. See 9 Wright Miller, Federal Practice Procedure, § 2585, p 729.
The trial court's conclusions of law are not subject to the "clearly erroneous" standard of review. 9 Wright Miller, supra, § 2585, p 732. Case v Morrisette, 155 US App DC 31, 39; 475 F.2d 1300 (1973). Where a finding is derived from an erroneous application of law to facts, the appellate court is not limited to review for clear error. Nor is an appellate court so limited where the trial judge's factual findings may have been influenced by an incorrect view of the law. Pavlides v Galveston Yacht Basin, Inc, 727 F.2d 330, 339, n 16 (CA 5, 1984); Weissmann v Freeman, 868 F.2d 1313, 1317 (CA 2, 1989), cert den 493 US ___; 110 S Ct 219; 107 L Ed 2d 173 (1989). Chaparral Resources, Inc v Monsanto Co, 849 F.2d 1286, 1289 (CA 10, 1988).
In summary, we hold that the factual findings of a trial court in a divorce case are to be reviewed for clear error. A finding is clearly erroneous if the appellate court, on all the evidence, is left with a definite and firm conviction that a mistake has been committed. While this standard gives the appellate judge more latitude than when reviewing a trial by jury, it does not authorize a reviewing court to substitute its judgment for that of the trial court; if the trial court's view of the evidence is plausible, the reviewing court may not reverse.
We find that the Court of Appeals applied an erroneous standard of review to the factual determinations of the trial court when it stated that "although this court hears divorce cases de novo, it will not substitute its judgment for that of the trial court . . . unless convinced that it would have reached a different result." The "would have reached a different result" inquiry, in our view, invites a substitution of judgment by the reviewing court.
However, this case cannot be resolved by a simple application of the clearly erroneous standard of review, because it appears the trial court's findings of fact may have been based on an erroneous view of the law.
The meaning of the term "reside" in the divorce judgment may be a factual or legal question. However, the record before us does not reveal how the trial court arrived at its definition of the term. The trial court resorted to several extrinsic sources to define "reside" without first determining that the term was ambiguous. Until the trial court has been afforded an opportunity to clarify the basis of its earlier findings regarding the meaning of the term "reside," we cannot ascertain whether the proper legal rule has been misapplied in arriving at the findings of fact made below.
In making the threshold ambiguity determination, the court may look to the findings of law and fact on which the divorce judgment was based. Walker, Tessmer, n 3 supra.
Thus, we remand this case to the trial court for consideration of the meaning of the term "reside" in the parties' divorce judgment, and direct the trial court to state the legal and factual basis for its definition of the term, specifying which findings are of fact and which of law. MCR 7.316(A)(7).
We do not retain jurisdiction.
RILEY, C.J., and LEVIN, BRICKLEY, CAVANAGH, ARCHER, and GRIFFIN, JJ., concurred with BOYLE, J.
I have signed the opinion of the Court because I agree that the Court of Appeals "applied an erroneous standard of review to the factual determinations of the trial court when it stated that `although this court hears divorce cases de novo, it will not substitute its judgment for that of the trial court . . . unless convinced that it would have reached a different result.' The `would have reached a different result' inquiry, in our view, invites a substitution of judgment by the reviewing court."
I also agree that "the factual findings of a trial court in a divorce case are to be reviewed for clear error. A finding is clearly erroneous if the appellate court, on all the evidence, is left with a definite and firm conviction that a mistake has been committed." I further agree that if the trial court's "account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently," Anderson v Bessemer City, 470 U.S. 564, 574; 105 S Ct 1504; 84 L Ed 2d 518 (1985), or, as expressed by the Court of Appeals in the instant case, even though the Court of Appeals "would have reached a different result had we occupied the position of the lower court."
Ante, p 805.
Unpublished opinion per curiam of the Court of Appeals, decided January 13, 1988 (Docket No. 98716).
It has been observed that Anderson "adds confusion to the issue what constitutes a `clearly erroneous' fact finding."
I write separately to add that in explaining in Anderson the meaning of the clearly erroneous standard, the United States Supreme Court elaborated on, but did not withdraw, the "definite and firm conviction" formulation set forth in United States v United States Gypsum Co, 333 U.S. 364; 68 S Ct 525; 92 L Ed 746 (1948), adopted by this Court in Tuttle v State Hwy Dep't, 397 Mich. 44, 46; 243 N.W.2d 244 (1976). The Court in Anderson, supra, p 573, said that "certain general principles governing the exercise of the appellate court's power to overturn findings of a district court may be derived from" the decisions of the United States Supreme Court, and that
[t]he foremost of these principles, as the Fourth Circuit itself recognized, is that "[a] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v United States Gypsum Co, 333 U.S. 364, 395; 68 S Ct 525; 92 L Ed 746 (1948). [Emphasis added. Id., p 573.]
It may be helpful to keep in mind, in applying the Anderson elaboration, that the "foremost" principle is expressed in the formulation set forth in United States Gypsum.